Practice point: The Appellate determined that the Supreme Court improvidently exercised its discretion in denying as
untimely plaintiff's cross-motion for summary judgment. While the motion was made more than 120 days after the note of issue was
filed and, therefore, was facially untimely,
an untimely motion for summary judgment may be considered by the
court where, as here, a timely motion was made on
nearly identical grounds. The rationale is that the issues raised by the untimely motion are already properly before the motion court and, thus, the
nearly identical nature of the grounds may provide the requisite good
cause, pursuant to CPLR 3212 [a], to review the merits of the untimely motion.
Student note: The court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party.
Case: Wernicki v. Knipper, NY Slip Op 05324 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: A motion to dismiss for failure to prosecute is denied.
